1. Applicant’s Name: a. Application Date: 24 February 2020 b. Date Received: 5 August 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, an upgrade will help the applicant with mental issues that started while on active duty. The applicant has been diagnosed with post-traumatic stress disorder (PTSD) with social phobia. b. Board Type and Decision: In a records review conducted on 6 September 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 9 April 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 March 2009 (2) Basis for Separation: The applicant was informed of the following reasons: For being absent from the unit between on or about 23 July 2008 and 24 July 2008. Assaulted Sergeant A__ H__ with a boxer's fist on or about 28 September 2008; on numerous occasions between on or about 10 June 2008 and 11 October 2008 the applicant failed to be at the appointed place of duty at the time prescribed; between on or about 15 August 2008 and 18 September 2008 the applicant was absent from the unit; between on or about 20 December 2009 and on or about 22 January 2009 the applicant was absent from the unit. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 5 March 2009 (5) Administrative Separation Board: On 5 March 2009, the applicant unconditionally waived consideration of the case before an administrative separation board, if separated under other than honorable conditions. (6) Separation Decision Date / Characterization: 18 March 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 January 2008 / 4 years, 17 weeks b. Age at Enlistment / Education / GT Score: 19 / 21B1P, Combat Engineer / 92 c. Highest Grade Achieved / MOS / Total Service: E-1 / 21B1P, Combat Engineer / 1 year, 2 months, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, 12 August 2008 for: Failure to go at the time prescribed to the appointed place of duty on or about 10 June 2008. Failure to go at the time prescribed to the appointed place of duty on or about 20 June 2008. Absent without leave (AWOL) on or about 23 July 2008 until on or about 24 July 2008. Without authority, go from appointed place of duty on or about 24 June 2008. Disobeyed a lawful order on or about 20 June 2008. The punishment consisted of forfeiture of $673.00 pay per month for 2 months (1 month suspended); and extra duty 45 days; and restriction for 45 days (suspended). On 6 October 2008, the applicant’s suspended punishment was vacated due to the applicant was AWOL on or about 15 August 2008 until on or about 18 September 2008. FG Article 15, 3 December 2008, for: AWOL on or about 15 August 2008 until on or about 18 September 2008. Failure to go at the time prescribed to the appointed place of duty on or about 20 September 2008. Failure to go at the time prescribed to the appointed place of duty on or about 16 October 2008. Failure to go at the time prescribed to the appointed place of duty on or about 28 October 2008. Broke restriction on or about 11 October 2008. The punishment consisted of a forfeiture of $673.00 pay per month for 2 months (1 month suspended); extra duty 45 days; and restriction for 45 days (suspended). Four Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY),” to “Absent Without Leave (AWOL),” effective 23 July 2008; From “AWOL,” to “PDY,” effective 24 July 2008. From “PDY,” to “AWOL,” effective 20 December 2008; From “AWOL” to “Dropped From Rolls (DFR),” effective 21 December 2008; and From “DFR,” to “PDY,” effective 22 January 2009. Commander Report of Disciplinary or Administrative Action reflects the applicant received an offence of AWOL - Surrendered to Military/Civilian Authorities for being AWOL from 23 July 2008 to 24 July 2008. Military Police Report, 27 August 2008, reflects the applicant was apprehended for: AWOL - Surrendered to Military/Civilian Authorities (On Post). Military Police Report, 27 August 2008, reflects the applicant was apprehended for: Desertion - Surrendered to Military/Civilian Authorities (On Post). Commander Report of Disciplinary or Administrative Action reflects the applicant received an offense of Desertion - Surrendered to Military/Civilian Authorities for being a deserter from 18 August 2008 to 18 September 2008. Military Police Report, 29 September 2008, reflects the applicant was apprehended for: Aggravated Assault - with a Boxer’s Fist (On Post), Assault - Consummated by a Battery (On Post), and Disobey - Noncommissioned Officer or Petty Officer (On Post). Receipt For Inmate or Detained Person, 29 September 2008, reflects the applicant was charged with assault and released to a unit representative. DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) reflects the applicant was declared a deserter on 18 August 2008. Charge Sheet, 19 August 2008, reflects the applicant was charged with: violation of the UCMJ, Article 85, for without authority was absent from the unit on or about 23 July 2008 until on or about 24 July 2008; and, violation of the UCMJ, Article 86, for without authority was absent from the unit on or about 15 August 2008 with intent to remain away permanently and has continuously remained absent. Receipt For Inmate or Detained Person, 11 October 2008, reflects the applicant was charged with possession/consumption of ethyl alcohol by minor and was released to a unit first sergeant. Two Developmental Counseling Forms, for failure to report to accountability formations. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 10 December 2008, reflects the applicant was flagged for involuntary separation/field initiated (BA), effective 10 December 2008. Report of Mental Status Evaluation (MSE), 18 December 2008, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mild traumatic brain injury (mTBI) with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. Developmental Counseling Form, 20 January 2009, reflects the applicant was informed that a Chapter 14-12b would be initiated for continuous patterns of misconduct. The applicant’s Enlisted Record Brief, 10 February 2009, reflects the applicant was flagged for adverse action (AA), effective 23 July 2008 and for involuntary separation/field initiated (BA), effective 30 June 2008; was ineligible for Other; prohibitions not otherwise identified (9X). The Assignment Eligibility Availability code reflects the applicant was temporarily ineligible for reassignments due to medical, convalescence, confinement due to trial by court martial, enrollment in Track III ASAP, or local bar to reenlistment. FLAGS / AEA codes: AA, BA / C RE/Prohibition code: 9X i. Lost Time / Mode of Return: 1 month, 6 days. This period is not annotated on the DD Form 214 block 29. AWOL, 23 July 2008 - 24 July 2008 / Apprehended by Military Authorities AWOL, 15 August 2008 - 18 September 2008 / Apprehended by Military Authorities j. Behavioral Health Condition(s): (1) Applicant provided: Mind Springs Health, Inc. Client Treatment Plan Report, 17 November 2019, reflects the applicant was being treated for worsened depression episode, with development of psychotic symptoms and severe anxiety symptoms related to traumatic history. (2) AMHRR Listed: MSE as described in previous paragraph 4h. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Mind Springs Health, Inc. Client Treatment Plan Report; Department of Veterans Affairs (VA) appointment form. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (7) Paragraph 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends, in effect, an upgrade will help the applicant with mental issues that started while on active duty. The applicant states to have been diagnosed with PTSD with social phobia. The applicant provided Mind Springs Health, Inc. Client Treatment Plan Report, 17 November 2019, that reflects the applicant was being treated for worsened depression episode, with development of psychotic symptoms and severe anxiety symptoms related to traumatic history. The AMHRR shows the applicant underwent a MSE on 18 December 2008 which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. The Military Review Boards (MRB) representative attempted to call the applicant at the phone number in the application on 7 July 2023 and left a voicemail requesting medical documentation to support a diagnosis of PTSD with social phobia. In addition, the MRB representative emailed the applicant’s VA representative on 7 July 2023. The MRB representative also called the applicant again on 18 July and 21 August 2023 but received no response from the applicant or VA representative. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. While the applicant's DOD and VA health records were void of a diagnosis, the applicant asserts PTSD and Social Phobia which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The applicant asserts PTSD and Social Phobia. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that while the applicant’s assertions are acknowledged, a determination cannot be made without additional documentation. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention: The applicant contends, in effect, an upgrade will help the applicant with mental issues that started while on active duty. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record, and lack of information in the applicant’s file in regard to behavioral health diagnosis or otherwise. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. ? d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s PTSD assertion did not excuse or mitigate the AWOL, Aggravated Assault, Assault- Consummated by Battery offenses. The applicant’s PTSD assertions were not supported by documentation and the Board recommends the applicant apply for a personal appearance. At this time, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant’s Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL – Absent Without Leave AMHRR – Army Military Human Resource Record BCD – Bad Conduct Discharge BH – Behavioral Health CG – Company Grade Article 15 CID – Criminal Investigation Division ELS – Entry Level Status FG – Field Grade Article 15 GD – General Discharge HS – High School HD – Honorable Discharge IADT – Initial Active Duty Training MP – Military Police MST – Military Sexual Trauma N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry SCM – Summary Court Martial SPCM – Special Court Martial SPD – Separation Program Designator TBI – Traumatic Brain Injury UNC – Uncharacterized Discharge UOTHC – Under Other Than Honorable Conditions VA – Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200008215 1